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Cole Hodson, appellant, v. 

Bradley Taylor et al., 

appellees.

___ N.W.2d ___

Filed March 13, 2015. No. S-13-1131.

1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower 

court’s grant of summary judgment if the pleadings and admissible evidence 

offered at the hearing demonstrate that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and 

that the moving party is entitled to judgment as a matter of law.

2. ____: ____. In reviewing a summary judgment, an appellate court views the summary judgment evidence in the light most favorable to the party against whom 

the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence.

3. Judgments: Appeal and Error. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the lower 

court’s conclusions.

4. Negligence: Liability: Proximate Cause. In premises liability cases, an owner 

or occupier is subject to liability for injury to a lawful visitor resulting from a 

condition on the owner or occupier’s premises if the lawful visitor proves (1) 

that the owner or occupier either created the condition, knew of the condition, or 

by exercise of reasonable care would have discovered the condition; (2) that the 

owner or occupier should have realized the condition involved an unreasonable 

risk of harm to the lawful visitor; (3) that the owner or occupier should have 

expected that the visitor either would not discover or realize the danger or would 

fail to protect himself or herself against the danger; (4) that the owner or occupier 

failed to use reasonable care to protect the visitor against the danger; and (5) that 

the condition was a proximate cause of damage to the visitor.

5. Recreation Liability Act. Nebraska’s Recreation Liability Act applies only to 

premises liability actions.

6. Negligence. Premises liability causes of action cannot be taken against one who 

is not an owner or occupant of the property.

7. ____. Not every negligence action involving an injury suffered on someone’s 

land is properly considered a premises liability case.

8. ____. Under a premises liability theory, a court is generally concerned with either 

a condition on the land or the use of the land by a possessor.

9. ____. In order to recover in a negligence action, a plaintiff must show a legal 

duty owed by the defendant to the plaintiff, a breach of such duty, causation, 

and damages.

10. Negligence: Proof. Foreseeability is analyzed in the context of breach and is 

used as a factor in determining whether there was a breach of the duty of reasonable care.

11. Negligence. A person acts negligently if the person does not exercise reasonable 

care under all the circumstances.
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12. ____. Primary factors to consider in ascertaining whether a person’s conduct 

lacks reasonable care include the foreseeable likelihood that the person’s conduct 

will result in harm, the foreseeable severity of any harm that may ensue, and the 

burden of precautions to eliminate or reduce the risk of harm.

13. ____. Foreseeability is analyzed as a fact-specific inquiry into the circumstances 

that might have placed the defendant on notice of the possibility of injury.

14. ____. Small changes in the facts may make dramatic change in how much risk 

is foreseeable.

15. ____. The law does not require precision in foreseeing the exact hazard or consequence which happens; it is sufficient if what occurs is one of the kinds of 

consequences which might reasonably be foreseen.

16. ____. Though questions of foreseeable risk are ordinarily proper for a trier of 

fact, courts may reserve the right to determine that the defendant did not breach 

its duty of reasonable care if reasonable people could not disagree about the 

unforeseeability of the injury.

17. Negligence: Invitor-Invitee: Liability. Owners or occupiers have breached their 

duty if they know, or by exercise of reasonable care should have realized, that 

a condition on their land would create a risk from which visitors would fail to 

protect themselves.

18. ____: ____: ____. A land possessor is not liable to a lawful entrant on the land 

unless the land possessor had or should have had superior knowledge of the dangerous condition on the land.

19. ____: ____: ____. Land possessors have a duty to attend to the foreseeable 

risks in light of the then-extant environment, including foreseeable precautions 

by others.

20. Negligence: Waters. A duty to provide for a water’s passage through the landowner’s property is owed to adjoining landowners, and not to guests of adjoining landowners.

21. Negligence. All people owe a basic duty to conform to the legal standard of reasonable conduct in light of the apparent risk.

22. Negligence: Waters: Invitor-Invitee. A lake association owes to the lawful guest 

or visitor a duty to protect the visitor against those parts of the land which it has 

reason to know of, with reasonable care would have discovered, or should have 

realized involved an unreasonable risk of harm to the visitor.

23. Negligence. Generally, when a dangerous condition is open and obvious, the 

owner or occupier is not liable in negligence for harm caused by the condition.

24. ____. Under the open and obvious doctrine, a possessor of land is not liable to his 

or her invitees for physical harm caused to them by any activity or condition on 

the land whose danger is known or obvious to them, unless the possessor should 

anticipate the harm despite such knowledge or obviousness.

25. ____. A condition is considered obvious when the risk is apparent to and of 

the type that would be recognized by a reasonable person in the position of 

the invitee.

26. Negligence: Waters. A body of water is not a concealed, dangerous condition, 

because the public recognizes that bodies of water vary in depth and that sharp 

changes in the bottom may be expected.
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27. Negligence. If an owner or occupier should have anticipated that persons using 

the premises would fail to protect themselves, despite the open and obvious risk, 

then the open and obvious doctrine does not apply.

Appeal from the District Court for Washington County: 

James G. Kube, Judge. Affirmed in part, and in part reversed 

and remanded for further proceedings.

E. Terry Sibbernsen and Andrew D. Sibbernsen, of 

Sibbernsen, Strigenz & Sibbernsen, P.C., and Jeffrey B. 

Farnham and Andrew W. Simpson, of Farnham & Simpson, 

P.C., L.L.O., for appellant.

David M. Woodke and Earl G. Green III, of Woodke & 

Gibbons, P.C., L.L.O., for appellees Bradley Taylor, Laura 

Taylor, and Whitney Taylor.

Mark D. Fitzgerald, of Fitzgerald, Vetter & Temple, for 

appellee Willers Cove Owners Association.

Stephen L. Ahl and Krista M. Carlson, of Wolfe, Snowden, 

Hurd, Luers & Ahl, L.L.P., for appellees Ronald D. Willers and 

Marilyn M. Willers.

Heavican, C.J., Wright, Connolly, McCormack, MillerLerman, and Cassel, JJ.

McCormack, J.

I. NATURE OF CASE

Cole Hodson suffered a catastrophic injury when he dove 

into the Willers Cove lake near Pilger, Nebraska. Cole brings 

a tort action against Bradley Taylor and Laura Taylor (collectively the Taylors) and their daughter, Whitney Taylor, as his 

hosts at the lake; the Willers Cove Owners Association (the 

WCOA), claiming the lake association should have known of 

dangerous conditions in the lake; and Ronald D. Willers and 

Marilyn M. Willers (collectively the Willers), for negligently 

constructing a culvert which led to the dangerous condition 

that caused Cole’s injury. The district court dismissed all of 

Cole’s claims in summary judgment. Cole now appeals.
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II. BACKGROUND

1. Accident

On the date of the accident, the Taylors were residents of 

and owned a home located at the Willers Cove lake community 

in Stanton County, Nebraska.

On June 26, 2010, Cole and three other friends—Adam 

Hodson, Caitlin Hoer (Caitlin), and Johnny Forsen (Johnny)—

were invited by Whitney to the residence of the Taylors for 

the purpose of swimming and boating. Adam was Whitney’s 

boyfriend, Cole was Adam’s cousin, Johnny was Cole’s childhood friend, and Caitlin was a friend of Whitney. Each member 

of the group was around 18 years old at the time. Shortly after 

arrival, the group boarded the Taylors’ pontoon boat and proceeded on the Willers Cove lake. Deposition testimony among 

the people on the boat differs, but either Whitney or Adam 

operated the boat. The pontoon boat stopped twice at different 

locations. While stopped, Cole and Johnny jumped off the pontoon boat and swam in the lake.

Cole recalls that he had at least two beers since arriving at 

Willers Cove and before his final dive into the water. Johnny 

recalls that each member of the group had three beers before 

Cole was injured.

The last stop was made on the west side of the lake, somewhere between 50 and 200 feet from the north shoreline. 

Whitney stated that she chose this place for jumping and swimming because she had stopped there in the past.

Cole stated he could not see below the surface of the lake 

and jumped into the lake without testing the depth. Johnny also 

stated that the water was “pretty muddy.” Further, in Cole’s 

deposition, counsel asked:

Q[:] Okay. Now, did you know when you first dove 

into the lake that if you couldn’t see below the surface on 

a lake that there was a possibility that there could be an 

object or shallow depth?

. . . .

A[:] Possibly.

Q[:] Okay. And how is it that you knew that could be 

the case?
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A[:] That’s the case in any situation like that.

Cole also admitted that the depth of lake bottoms can be different at different places in a lake or pond.

After stopping at other locations in the lake, the boat came 

to a stop in its final place before Cole’s injury. Cole is unsure 

how far this was from the shoreline. Both Cole and Johnny 

dove, jumped, or flipped “several” or “five or more” times 

into the water at this location, and they swam around in the 

water. Cole says that during each of those dives, and during his 

time swimming at this location, he did not touch the bottom 

of the lake. Deposition testimony of all the people on the boat 

indicates that no one formally tested the depth of the lake at 

this location.

After “several” successful dives at the last location, Cole 

dove and abruptly came into contact with something in the 

water, which he assumes to be the bottom of the Willers Cove 

lake. Cole stated in his deposition that he does not know for 

certain that he hit the bottom of the lake, because he does not 

remember anything after his final dive into the lake. As a result 

of the dive, Cole suffered a “C5 complete spinal cord injury.” 

The C5 spinal cord injury has left Cole paralyzed and without 

feeling from the chest down. He has function in his shoulders, 

but only limited flexion in his hands and wrists.

Johnny left the boat to retrieve Cole after the accident. 

Johnny testified that when he jumped off the boat this final 

time, he could walk for a few feet because the water in that 

location was only about “knee high.” But, before he could get 

to Cole, the depth dropped off again and he had to swim. This 

conflicts with Johnny’s original statement in which he said that 

he had to swim to Cole after exiting the boat. Adam also testified that Johnny had to swim to get to Cole.

2. Willers Cove

The Willers once owned and operated a sand and gravel 

company. The Willers Cove lake was created where they dug 

sand and gravel from the earth that was later filled in with 

ground water. The Willers were the initial owners of Willers 

Cove before deeding the lake to the WCOA.
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On July 20, 2005, the Willers executed a quitclaim deed 

conveying ownership of the lake to the WCOA. When the 

lake was transferred to the WCOA in 2005, it was a completed 

project. The Willers did nothing more to the lake itself after the 

transfer. The WCOA now owns, operates, maintains, and manages the Willers Cove Lake.

The WCOA passes rules and regulations for the Willers 

Cove lake. Prior to 2007, the WCOA had a rule that there 

would be no swimming more than 50 feet from the shore of 

the Willers Cove lake. However, such rule was not readopted 

in 2007. One of the directors of the WCOA stated that this 

regulation was either unintentionally omitted or purposefully 

left out. He stated that the rule seemed meaningless and would 

be difficult to enforce, though he does not recall exactly why 

the rule was omitted from adoption in 2007.

Willers Cove is a private lake. All people with residences 

abutting the lake must be a member of the WCOA. One must 

be a member or guest of a member of the WCOA to be able to 

use the lake.

3. Potentially Dangerous Conditions

at Willers Cove

Cole argues that the sand along the north shoreline was 

known to sometimes cause potentially dangerous conditions in 

the lake, because the sand was unstable. The evidence shows 

that members of the WCOA and the Willers discussed this 

unstable sand condition at a meeting in 2004.

Members of the lake community were not positive as to the 

depth of the lake, but Bradley testified that he had knowledge 

of the depth of the lake based on the depth finder installed on 

his boat. He stated that the deepest part of the lake is 50 feet 

and that it tapers off in depth closer to the shore. He estimated 

that right next to the shore, the depth was about 4 feet deep. 

Bradley stated that he never noticed especially varying depths 

of the lake, or a sandbar in the lake. After the accident, the 

WCOA was compelled to have a survey done of the depth of 

the entire lake.
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Cole retained an expert witness, Charles R. Dutill II, to 

opine as to potentially dangerous conditions in the Willers 

Cove lake. Dutill stated that the water levels rose in the year 

of the accident due to rainfall and some flooding. The rising 

water levels actually caused conditions in the lake to become 

shallower, because the water level caused the shoreline of the 

lake to move outward about 2 feet. Thus, the depth of the water 

at the shoreline would be significantly less than when lake 

elevation is lower overall. Specifically, Dutill stated that, typically, 100 feet from shore would have a depth of 18.75 feet, 

but that on the day of the accident, due to more water being in 

the lake, the conditions would be “significantly” shallower at 

100 feet.

Dutill opined that the WCOA members should have known 

that the lake levels were rising. However, he specifically stated 

that he did not have the opinion that the WCOA members 

should have known that the rising lake levels would cause a 

dangerous, hazardous, or shallow condition in the lake.

4. The Willers’ Property

The Willers own property at Willers Cove on the east end 

of the lake. On the Willers’ property, there is a creek. This 

creek did not flow into Willers Cove prior to 2010. Sometime 

in 2009, Ronald replaced a small culvert on his own land 

with a larger culvert so that he could drive through the area 

on his property containing the creek. Later, Ronald removed 

the culvert altogether after heavy rains and flooding occurred 

in 2010.

However, in 2010, due to flooding in the area, the creek that 

ran on the Willers’ property breached its banks and allegedly 

caused the shores of the Willers Cove lake to erode, causing additional material and water to flow into the lake. Dutill 

opined as to the culvert. His opinion was that the culvert was 

substantially undersized and insufficient to handle the appropriate flow of water in the stream. Dutill further stated the 

opinion that Ronald was negligent in failing to consult with 

or hire an engineer or other similar professional in regard to 

installing the culvert. However, nowhere in his opinion did 

Dutill state that this culvert caused the levels in the lake to rise. 
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He stated only that it was apparent the waterflow of the creek 

had changed over time. Dutill also could not connect that to the 

installation of the culvert.

Dutill stated in his deposition:

There are two aspects to the breakout that are significant. 

One is that again, with it being my opinion that a substantial amount of sediment moved into the lake, some 

of that sediment would have reached the location of the 

accident. And so that would make the depth more shallow 

there than would otherwise be the case. A much more significant factor is that the breakout allowed a substantial 

amount of water that would not normally flow into the 

lake to flow into the lake.

Dutill commented, “[T]here are several factors that result 

in more water in the lake. . . . [T]he net effect of those factors 

would be that . . . the edge of the lake moved more than two 

feet” from where it usually meets. Dutill could point to no one 

factor that caused the water levels in the Willers Cove lake 

to rise.

5. Allegations Against Defendants

(a) Allegations Against the Taylors

Cole alleges that his injuries were the direct and proximate result of negligence by the Taylors. Cole asserts that 

the Taylors were negligent in failing to warn users of Willers 

Cove, such as Cole, of the dangerous and shallow condition 

of the lake; in allowing Whitney, their daughter, and her 

guests to use the pontoon boat without supervision; and in 

permitting Whitney or one of her guests to drive the pontoon 

boat when the Taylors knew, or in the exercise of reasonable 

care should have known, that she was inexperienced and 

incompetent to operate this pontoon boat on the Willers Cove 

lake on the date of the accident, given the condition of the 

lake and the depth.

(b) Allegations Against the Willers

Cole alleges that his injuries were the direct and proximate result of negligence by the Willers. Cole asserts that the 

Willers failed to ascertain and maintain sufficient and safe 
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water depth in the lake, failed to warn users of the dangerous 

and shallow condition of the lake, failed to enforce safety rules 

and regulations relating to the use of the lake, failed to publish 

rules and regulations concerning jumping off pontoon boats 

into the lake, failed to warn users of the dangers of recent 

lake flooding, and failed to design and construct the lake and 

surrounding area in a manner that would prevent surface and/

or floor waters from cutting through and breaching the land 

adjacent to the lake, thereby enabling such waters to enter the 

lake and deposit sand or silt on the lake bottom.

In particular, Cole argued that Ronald negligently installed a 

culvert on his land, which had the effect of creating a dangerous condition in the lake, and that Ronald should have known 

such dangerous condition was created.

(c) Allegations Against the WCOA

Cole alleges that his injuries were the direct and proximate 

result of negligence by the WCOA. Cole asserts that the 

WCOA failed to ascertain and maintain sufficient and safe 

water depth in the lake; failed to warn users, such as Cole, 

of the dangerous and shallow condition of the lake; failed 

to enforce reasonably safe rules and regulations relating to 

the use of the lake; failed to publish rules and regulations 

concerning jumping off a pontoon boat or a boat; failed to 

warn users of the lake of the shallow depth of the lake due 

to the recent flooding; and failed to post signs and warnings 

prohibiting individuals from using and swimming in the lake 

due to the recent flooding and resulting unsafe condition of 

the lake.

6. District Court Ruling

All of the defendants moved for summary judgment. As 

to the Taylors, the district court found that, as a matter of 

law, Nebraska’s Recreation Liability Act (the Act)1 barred 

liability in this case. In so finding, the district court found 

1 Neb. Rev. Stat. §§ 37-729 through 37-736 (Reissue 2008).
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that the Taylors were “owners” of the lake, as defined in the 

Act. The district court also followed our holding in Holden v. 

Schwer,

2

 which states that in order for the Act to apply, the 

landowner does not need to fully dedicate his or her property 

to the public in order to be covered by the Act, but instead, 

a landowner need only allow some members of the public, 

on a casual basis, to enter and use the land for recreational 

purposes in order to be protected from liability under the Act. 

Because the court determined that the Act applied, the court 

did not need to decide whether Cole’s negligence claims had 

any merit.

As to the Willers, the court noted that the Willers had not 

owned or been responsible for maintaining the lake for more 

than 4 years prior to the date of the accident and that thus, 

most negligence claims were time barred by Neb. Rev. Stat. 

§ 25-207 (Reissue 2008). As to the culvert installed by Ronald, 

the court noted the duty to provide for passage of water is only 

to adjoining landowners, and not to guests on adjoining property, like Cole. Further, although foreseeability is normally a 

matter for a trier of fact to determine, the court found that in 

this case, as a matter of law,

[no] reasonable person could determine that it was foreseeable that inserting a culvert in a waterway would, 

under extreme precipitation, cause excess water and silt 

to enter into Willers Cove and in turn cause an area in 

the lake to become excessively shallow such that someone would dive into the lake and suffer the type of injury 

experienced by [Cole].

As to the WCOA, the court found that the lake was an 

open and obvious condition that Cole should have realized 

presented a risk of death or serious harm. In order to apply 

the open and obvious doctrine, a court must also find that the 

WCOA could not have anticipated that such harm would come 

to someone like Cole.3 The court stated that this proposition 

2 Holden v. Schwer, 242 Neb. 389, 495 N.W.2d 269 (1993).

3 See Aguallo v. City of Scottsbluff, 267 Neb. 801, 678 N.W.2d 82 (2004).
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“is directly related to” the issue of foreseeability and that 

the WCOA could not have foreseen that such harm would 

come to someone in the position of Cole. Finding that the 

WCOA could not have foreseen this condition in the lake, 

the court found that the open and obvious doctrine barred the 

WCOA’s liability.

III. ASSIGNMENTS OF ERROR

Cole assigns, consolidated and restated, that the district 

court erred in granting summary judgment (1) for the Taylors 

on the basis that the Taylors were protected from liability by 

the Act; (2) for the Willers on the basis that there was no duty 

or breach of such duty to Cole to adequately provide for passage of water from their property, because the events causing 

injury were unforeseeable; and (3) for the WCOA, because it 

was not negligent in failing to enforce regulations restricting 

swimming to within 50 feet from the shore and because the 

dangerous condition in the lake was unforeseeable.

IV. STANDARD OF REVIEW

[1,2] We will affirm a lower court’s grant of summary judgment if the pleadings and admissible evidence offered at the 

hearing demonstrate that there is no genuine issue as to any 

material facts or as to the ultimate inferences that may be 

drawn from those facts and that the moving party is entitled to 

judgment as a matter of law.4 In reviewing a summary judgment, an appellate court views the summary judgment evidence 

in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence.5

[3] When reviewing questions of law, an appellate court 

has an obligation to resolve the questions independently of the 

lower court’s conclusions.6

4 Zawaideh v. Nebraska Dept. of Health & Human Servs., 285 Neb. 48, 825 

N.W.2d 204 (2013).

5 Id.

6 Id.
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V. ANALYSIS

1. Recreational Liability Act

and the Taylors

In reviewing the complaint in this case, we find that the 

Taylors did not own or occupy the property on which the 

injury occurred. Therefore, we do not view this as a premises 

liability action. The Act applies only to premises liability 

actions, and therefore, the Act does not apply to this case. We 

reverse, and remand the cause to the district court for a determination on the remaining questions of the Taylors’ alleged 

negligence.

An owner is someone “who has the right to possess, use, and 

convey something; a person in whom one or more interests are 

vested.”7 An occupant is “[o]ne who has possessory rights in, 

or control over, certain property or premises” or “[o]ne who 

acquires title by occupancy.”8

[4] In premises liability cases, an owner or occupier is subject to liability for injury to a lawful visitor resulting from a 

condition on the owner or occupier’s premises if the lawful 

visitor proves (1) that the owner or occupier either created the 

condition, knew of the condition, or by exercise of reasonable 

care would have discovered the condition; (2) that the owner or 

occupier should have realized the condition involved an unreasonable risk of harm to the lawful visitor; (3) that the owner or 

occupier should have expected that the visitor either would not 

discover or realize the danger or would fail to protect himself 

or herself against the danger; (4) that the owner or occupier 

failed to use reasonable care to protect the visitor against the 

danger; and (5) that the condition was a proximate cause of 

damage to the visitor.9

[5] The Act applies only to premises liability actions. Under 

the Act, “an owner of land owes no duty of care to keep 

the premises safe for entry or use by others for recreational 

7 Black’s Law Dictionary 1214 (9th ed. 2009).

8 Id. at 1184.

9 Aguallo v. City of Scottsbluff, supra note 3.
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purposes or to give any warning of a dangerous condition, use, 

structure, or activity on such premises to persons entering for 

such purposes.”10 Therefore, when the Act applies, we read the 

Act only to bar liability for premises liability actions.

In this case, Cole has alleged premises liability actions 

against the Taylors for his injury, which occurred on the 

Willers Cove lake. Cole’s complaint alleges that the Taylors 

were negligent:

(a) In failing to warn users of Willers Cove, such 

as [Cole], of the dangerous and shallow condition of 

the lake;

. . . .

(d) In failing to warn or prohibit swimming in the 

area of the sandpit lake known as Willers Cove when the 

defendants knew, or in the exercise of reasonable care 

should have known, of the shallow and unstable condition 

of the lake at the area where the accident occurred;

(e) In failing to warn users of the lake, such as the 

plaintiff, Cole . . . , of the unreasonably dangerous and 

unsafe condition of the lake on June 26, 2010.

[6] However, premises liability causes of action cannot be 

taken against one who is not an owner or occupant of the property. The Taylors were not owners or occupants of the Willers 

Cove lake. The record is undisputed that the Taylors are not 

legal owners of the lake. The WCOA is the legal owner of 

the lake.

Neither do the Taylors qualify as occupants of the Willers 

Cove lake. Under the legal definition of occupant, one may 

be an occupant by having control over the land in question. 

Though the lower court found that the Taylors were “in control” of the lake by virtue of their membership in the WCOA, 

we disagree. Membership in the WCOA does not give those 

members control of the lake that the WCOA owns. The people 

truly in control of the WCOA’s property are those in positions 

of control of the WCOA itself—for example, the WCOA officers. Just because the Taylors are adjoining landowners, can 

10 § 37-731. See, also, Bronsen v. Dawes County, 272 Neb. 320, 722 N.W.2d 

17 (2006).
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invite guests to use the lake, and can otherwise use the lake as 

they wish does not make them in control of the property, nor 

does premises liability attach to the Taylors for what happens 

on that lake.

[7,8] Not every negligence action involving an injury suffered on someone’s land is properly considered a premises 

liability case.11 Under a premises liability theory, a court is 

generally concerned with either a condition on the land or 

the use of the land by a possessor.12 The complaint against 

the Taylors does include causes of action not associated with 

premises liability.

We reverse the district court’s determination that the Act 

applies, because the Act applies only to premises liability 

actions, and the Taylors do not have premises liability for 

injuries that occur due to dangerous conditions in the lake. We 

remand the cause for a determination of the remaining negligence allegations against the Taylors.

2. Alleged Negligence of the

Willers and the WCOA

We agree with the district court and affirm its finding 

that, even with all reasonable inferences in favor of Cole, 

the Willers were not negligent, because the Willers owed no 

special duty to Cole and because the injury of Cole was not 

reasonably foreseeable to the ordinary person. However, we do 

find material issues of fact remaining as to the WCOA’s ability to foresee the dangerous condition in the lake. We reverse, 

and remand the district court’s summary judgment ruling as to 

the WCOA.

[9-12] In order to recover in a negligence action, a plaintiff 

must show a legal duty owed by the defendant to the plaintiff, a breach of such duty, causation, and damages.13 Our 

case law has placed foreseeability in the context of breach 

and as a factor in determining whether there was a breach 

11 Riggs v. Nickel, 281 Neb. 249, 796 N.W.2d 181 (2011); Semler v. Sears, 

Roebuck & Co., 268 Neb. 857, 689 N.W.2d 327 (2004).

12 Id.

13 Gaytan v. Wal-Mart, 289 Neb. 49, 853 N.W.2d 181 (2014).
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of the duty of reasonable care.14 A person acts negligently 

if the person does not exercise reasonable care under all the 

circumstances. “‘Primary factors to consider in ascertaining 

whether the person’s conduct lacks reasonable care [include] 

the foreseeable likelihood that the person’s conduct will result 

in harm, the foreseeable severity of any harm that may ensue, 

and the burden of precautions to eliminate or reduce the risk 

of harm.’”15

[13-15] Under the Restatement (Third) of Torts, which 

Nebraska has adopted, foreseeability is analyzed as a factspecific inquiry into the circumstances that might have placed 

the defendant on notice of the possibility of injury.16 Stated 

another way, the foreseeability analysis requires us to ask 

what the defendants knew, “when they knew it, and whether a 

reasonable person would infer from those facts that there was 

a danger.”17 Small changes in the facts may make a dramatic 

change in how much risk is foreseeable.18 The law does not 

require precision in foreseeing the exact hazard or consequence 

which happens; it is sufficient if what occurs is one of the kinds 

of consequences which might reasonably be foreseen.19

[16] Though questions of foreseeable risk are ordinarily 

proper for a trier of fact, courts may reserve the right to determine that the defendant did not breach its duty of reasonable 

care, as a matter of law, if reasonable people could not disagree 

about the unforeseeability of the injury.20 Therefore, although 

foreseeability is a question of fact, there remain cases where 

14 See A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907 

(2010).

15 Id. at 218, 784 N.W.2d at 918 (emphasis supplied). See, also, 1 Restatement 

(Third) of Torts: Liability for Physical and Emotional Harm, § 3 (2010).

16 See, A.W. v. Lancaster Cty. Sch. Dist. 0001, supra note 14; 1 Restatement 

(Third) of Torts, supra note 15, § 7.

17 A.W. v. Lancaster Cty. Sch. Dist. 0001, supra note 14, 280 Neb. at 217, 

784 N.W.2d at 917.

18 Deviney v. Union Pacific RR. Co., 280 Neb. 450, 786 N.W.2d 902 (2010).

19 Fuhrman v. State, 265 Neb. 176, 655 N.W.2d 866 (2003).

20 A.W. v. Lancaster Cty. Sch. Dist. 0001, supra note 14. See Wilke v. 

Woodhouse Ford, 278 Neb. 800, 774 N.W.2d 370 (2009).
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foreseeability can be determined as a matter of law, such as by 

summary judgment.21

[17] More specifically, in premises liability cases, an owner 

or occupier is subject to liability for injury to a lawful visitor 

resulting from a condition on the owner or occupier’s premises 

if the lawful visitor proves (1) that the owner or occupier either 

created the condition, knew of the condition, or by exercise 

of reasonable care would have discovered the condition; (2) 

that the owner or occupier should have realized the condition 

involved an unreasonable risk of harm to the lawful visitor; (3) 

that the owner or occupier should have expected that the visitor 

either would not discover or realize the danger or would fail to 

protect himself or herself against the danger; (4) that the owner 

or occupier failed to use reasonable care to protect the visitor 

against the danger; and (5) that the condition was a proximate 

cause of damage to the visitor.22 It follows that owners or occupiers have breached their duty if they know, or by exercise of 

reasonable care should have realized, that a condition on their 

land would create a risk from which visitors would fail to protect themselves.

[18,19] Though Nebraska has abolished the distinction 

between invitee and licensee, “it remains true that a land possessor is not liable to a lawful entrant on the land unless the 

land possessor had or should have had superior knowledge 

of the dangerous condition on the land.”23 Land possessors 

have a duty to attend “to the foreseeable risks in light of the 

then-extant environment, including foreseeable precautions by 

others.”24 This is true regarding all dangerous conditions on 

the land, but “‘[k]nown or obvious dangers pose less of a risk 

than comparable latent dangers because those exposed can take 

precautions to protect themselves.’”25

21 Latzel v. Bartek, 288 Neb. 1, 846 N.W.2d 153 (2014).

22 Aguallo v. City of Scottsbluff, supra note 3.

23 Warner v. Simmons, 288 Neb. 472, 478, 849 N.W.2d 475, 480 (2014).

24 2 Restatement (Third) of Torts: Liability for Physical and Emotional 

Harm, § 51, comment a. at 243 (2012) (emphasis supplied).

25 Warner v. Simmons, supra note 23, 288 Neb. at 479, 849 N.W.2d at 480. 

See, also, 2 Restatement (Third) of Torts, supra note 24, § 51, comment k.
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(a) The Willers

We find that, even giving all reasonable inferences in favor 

of Cole, the Willers owed no duty to protect Cole from the type 

of injury that occurred. Without any duty, there is no breach 

that could have occurred. This finding is based on our conclusion that no reasonable person could find that the injury suffered by Cold was foreseeable from the installation of a culvert 

on adjoining property.

[20] Cole asserts that the Willers owe adjoining landowners a duty to provide for the passage of water from their 

land, and that the Willers breached that duty.26 If a landowner 

builds a structure in a natural watercourse to provide for the 

water’s passage through the landowner’s property, that landowner does owe a duty to adjoining landowners to maintain 

the construction so that water will not be collected or damage another’s property.27 However, our law states that this 

duty is owed only to other landowners, and is used only to 

refer to damages caused to another’s property.28 Cole is not 

an adjoining landowner, and therefore, the duty articulated in 

Bristol v. Rasmussen29 does not apply to Cole. We have not 

recognized, and do not now recognize, a duty to guests of an 

adjoining landowner to properly dispose of water from one’s 

own land.

[21] Although the Willers owed no special duty to Cole, 

they still owed the most basic duty to conform to the legal 

standard of reasonable conduct in light of the apparent risk.30

The expert witness could not state that the culvert was the 

cause of the rising levels in the Willers Cove lake, or of the 

overflow of the creek. Even assuming that Ronald could see 

that the installation of the culvert was causing some water to 

overflow from the creek, Ronald, in the position of an ordinary 

26 See Bristol v. Rasmussen, 249 Neb. 854, 547 N.W.2d 120 (1996).

27 See id.

28 See id. See, also, LaPuzza v. Sedlacek, 218 Neb. 285, 353 N.W.2d 17 

(1984); Leaders v. Sarpy County, 134 Neb. 817, 279 N.W. 809 (1938).

29 Bristol v. Rasmussen, supra note 26.

30 Desel v. City of Wood River, 259 Neb. 1040, 614 N.W.2d 313 (2000).
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person, would not foresee that an overflow from the creek 

would cause a dangerous condition in a separate body of water 

that would then cause a guest of that property to receive serious bodily injury.

We find that, giving all factual inferences in favor of Cole, 

the Willers could not have reasonably foreseen that by installing a culvert on their property, such culvert would cause flooding that would then cause sand in the bottom of the Willers 

Cove lake to move, which a visiting guest of another landowner would then proceed to dive into and receive life-altering 

injuries. Therefore, we affirm the district court’s granting of 

summary judgment.

(b) The WCOA

In contrast, we do find material issues of fact as to whether 

the WCOA knew of the condition, by exercise of reasonable 

care should have discovered the condition, or should have realized that a condition involved an unreasonable risk of harm to 

the lawful visitor.

[22] The WCOA owes to the lawful guest or visitor a duty 

to protect the visitor against those parts of the land which it 

has reason to know of, with reasonable care would have discovered, or should have realized involved an unreasonable risk 

of harm to the visitor.31 In particular, since the WCOA would 

have, and should have, superior knowledge of lake conditions, there is some duty to use that knowledge to protect lawful visitors.32

The factual question then becomes whether or not this 

condition should have been foreseeable to the WCOA. Many 

material issues of fact are left undetermined when viewed 

in the light most favorable to Cole, and weigh into the 

foreseeability of Cole’s injury. First, Cole claims the WCOA 

knew that the west side of the lake was unstable and that sand 

fell into the water. There is some evidence that this was discussed at meetings of the WCOA; however, we do not know if 

the WCOA recognized it as a dangerous condition for guests 

31 See Aguallo v. City of Scottsbluff, supra note 3.

32 See Warner v. Simmons, supra note 23.
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using the lake for swimming. This presents a material issue of 

fact, because if the WCOA knew the sand could create a dangerously shallow and unexpected condition in the lake, then 

it had a responsibility to implement safety precautions for its 

members and guests.

Cole also claims that the WCOA had a regulation keeping swimming to within 50 feet of the shore. However, the 

WCOA claims that this rule was abrogated by the time of the 

accident. Even if the rule were in effect, it is not clear whether 

its enforcement would have prevented Cole’s accident. This 

presents a material issue of fact that is proper for the trier of 

fact, because if there was a rule in effect, but being improperly enforced by the WCOA, and that improper enforcement 

caused the injury to Cole, then the WCOA may be liable 

for negligence.

Finally, no witness can definitively state where the boat was 

in the lake when the accident occurred. Most witnesses think it 

was on the west part of the lake, but no witnesses know how 

far the boat was from shore. These are issues of material fact, 

because the distance of the boat from the shore would impact 

the foreseeability of the dangerously shallow condition in 

the lake.

3. Open and Obvious Doctrine

The district court found that the open and obvious doctrine 

applied to bar recovery from the WCOA, because the lake constituted an open and obvious condition and the WCOA could 

not have foreseen that such harm would come to someone in 

the position of Cole. We reverse this application of the open 

and obvious doctrine and remand the cause for a determination 

of the WCOA’s negligence.

[23] Generally, when a dangerous condition is open and 

obvious, the owner or occupier is not liable in negligence for 

harm caused by the condition.33 The rationale behind this rule 

is that the open and obvious nature of the condition gives 

caution and that therefore, the risk of harm is considered 

33 Aguallo v. City of Scottsbluff, supra note 3.
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slight since reasonable people will avoid open and obvious risks.34

[24] Under the open and obvious doctrine, a possessor 

of land is not liable to his or her invitees for physical harm 

caused to them by any activity or condition on the land 

whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge 

or obviousness.35

[25,26] A condition is considered obvious when the risk 

is apparent to and of the type that would be recognized by a 

reasonable person in the position of the invitee.36 In Nebraska, 

we have repeatedly held that a body of water is not a concealed, dangerous condition.37 We have said: “It can be stated 

as a matter of fact that the public recognizes that bodies of 

water vary in depth and that sharp changes in the bottom may 

be expected.”38

Here, Cole did not protect himself from the open and obvious condition—a lake of unknown depth. He admits in his 

deposition that he has knowledge of natural bodies of water 

and that their depth can vary greatly. Invitees must take available precautions to protect themselves from open and obvious 

dangers. Further, it is accepted as a fact by this court that 

members of the public know that natural bodies of water can 

vary in depth and that sharp changes in the bottom should be 

expected.39 This hazard of a lake associated with risk of death 

and serious injury has been held to be appreciated even by 

children.40 We agree with the lower court in its finding that the 

34 Restatement (Second) of Torts § 343A (1965).

35 Id.

36 4 J.D. Lee & Barry A. Lindahl, Modern Tort Law: Liability and Litigation 

§ 39:7 (2d ed. 2014).

37 See, Haden v. Hockenberger & Chambers Co., 193 Neb. 713, 228 N.W.2d 

883 (1975); Cortes v. State, 191 Neb. 795, 218 N.W.2d 214 (1974); 

Lindelow v. Peter Kiewit Sons’, Inc., 174 Neb. 1, 115 N.W.2d 776 (1962).

38 Cortes v. State, supra note 37, 191 Neb. at 799, 218 N.W.2d at 216-17.

39 Cortes v. State, supra note 37.

40 Id.
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lake, as a body of water, “natural or artificial, . . . poses a wellknown and clear risk of being dangerous.”

[27] However, a determination that a danger is “open and 

obvious” does not end the analysis; a court must also determine whether the owner/occupier should have anticipated that 

persons using the premises would fail to protect themselves, 

despite the open and obvious risk.41 As we have stated:

Reason to anticipate harm from an open and obvious 

danger “may arise, for example, where the possessor has 

reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or 

will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invitee will proceed 

to encounter the known or obvious danger because to a 

reasonable man in his position the advantages of doing so 

would outweigh the apparent risk.”42

In Connelly v. City of Omaha,

43 we found that the open and 

obvious doctrine did not apply to bar the City of Omaha’s liability to the plaintiff. In Connelly, a young girl was paralyzed 

when she sledded down a hill in a city park into a tree on the 

right side of the hill. The City of Omaha argued that the tree 

was open and obvious and did not present an unreasonable risk 

of harm to sledders, who they assumed would have discovered the tree, realized the danger, and gone elsewhere to sled. 

However, we found that as an “entity operating a park that was 

open to the public and commonly used for sledding, the City 

should have expected the public to encounter some dangers 

which were not unduly extreme, rather than forgo the right to 

use the park for sledding.”44

Similarly, in this case, the lake presented a danger which 

was not “unduly extreme,” and since the lake was open for 

41 Connelly v. City of Omaha, 284 Neb. 131, 816 N.W.2d 742 (2012).

42 Id. at 142, 816 N.W.2d at 754. See, also, Tichenor v. Lohaus, 212 Neb. 

218, 322 N.W.2d 629 (1982).

43 Connelly v. City of Omaha, supra note 41.

44 Id. at 143-44, 816 N.W.2d at 755.
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guests and members to swim, the WCOA should have expected 

the public to encounter some of the dangers associated with the 

open body of water. The lake is an inviting scene for people to 

use for swimming in the summer months. Swimming in itself 

is not a highly dangerous activity. And in order to swim, one 

must first get into the body of water. A common method of 

getting into bodies of water is jumping or diving. Especially 

where a person has already jumped and dove into the lake and 

assumes to know its depth, that person would not be expected 

to realize that there was an undue danger associated with diving into the water another time. Viewing these inferences in the 

light most favorable to Cole, we conclude that the district court 

erred in finding that the open and obvious doctrine applied, 

because the WCOA should have anticipated its guests to come 

into contact with the lake.

We reverse the lower court’s finding that the open and obvious doctrine applied to bar the WCOA’s liability and remand 

the cause to determine the negligence of the WCOA consistent 

with the instructions in this opinion.

VI. CONCLUSION

We affirm the lower court’s ruling as to the Willers, and 

reverse, and remand for further proceedings as to the Taylors 

and the WCOA.

 Affirmed in part, and in part reversed and

remanded for further proceedings.

Stephan, J., not participating.

State of Nebraska, appellee, v. 

Tiuana L. Johnson, appellant.

___ N.W.2d ___

Filed March 13, 2015. No. S-14-245.

1. Indictments and Informations. A ruling on whether to allow a criminal information to be amended is made by the trial court in its discretion.

2. Judgments: Appeal and Error. When reviewing questions of law, an appellate 

court resolves the questions independently of the lower court’s conclusion.